Law gives employers flexibility on pot policies

While the legal status of marijuana has changed significantly in Massachusetts, employers' rules and policies regarding the drug are largely unaffected.

Gerry Tuoti Wicked Local Newsbank Editor

While the legal status of marijuana has changed significantly in Massachusetts, employers’ rules and policies regarding the drug are largely unaffected.

“From an employment perspective, the law seems to allow employers flexibility,” said Laurie Rubin, a partner and employment law attorney at Boston law firm Prince Lobel. “They can clearly exclude marijuana use onsite, and there’s no requirement that they need to accommodate marijuana use outside of the workplace.”

In the November election, Massachusetts legalized the recreational use of marijuana. The state voted to legalize medical marijuana in 2012. The drug, however, remains illegal at the federal level for all uses, creating a legal gray area.

That federal status, Rubin said, is important. In court cases in Massachusetts and elsewhere, courts have ruled that employers who fail to accommodate an employee’s use of medical marijuana are not violating anti-discrimination laws because of pot’s illegal federal status.

If marijuana were to one day become legalized under federal law, employers could potentially be obligated to accommodate medical use of the drug by employees, Rubin speculated.

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Tracy Burns, CEO of the New England Human Resources Association, said most of her organization’s members are taking a “wait and see” approach before altering their existing drug use policies.

“We’re suggesting they review their current workplace drug policies and update them as necessary,” she said.

Employers, Burns said, should clearly communicate their policies to employees and notify them if they do make any changes.

It remains to be seen whether there will be other workplace impacts, she said.

“If you assume people may be using it more because it now is legal, people will be looking at how that may impact performance long term,” Burns said.

While employers are generally allowed to conduct pre-hiring drug tests, they may only test current employees under very specific circumstances. For safety-related reasons, testing may be permitted for drivers and heavy-equipment operators. In some cases, employers may also be able to conduct a test if they have a reasonable suspicion an employee is working while under the influence.

“It could be an invasion of privacy to conduct a drug test,” Rubin said. “Part of it is making it clear to employees what’s in the zone of the policy and what’s not. It’s important, if there’s a reason to test, to make sure you notify employees in advance.”